One of the finest lines that environmental attorneys walk is in protecting communications between counsel and a retained environmental consultant from disclosure in litigation. In a recent case out of the Northern District of Indiana, Valley Forge Ins. Co. v. Hartford Iron & Metal, Inc., No. 1:14-cv-00006 (N.D. Ill. Apr. 14, 2017), the Court found that communications between counsel and consultants retained by the counsel were not protected by the attorney-client privilege, in large part because the consultants also performed remedial work. However, as the work was done "in anticipation of litigation" with, among others, the Indiana Department of Environmental Management (IDEM) and EPA, substantive communications were protected by the attorney work product doctrine. Read More »

On Friday, the Pennsylvania Superior Court issued a non-precedential opinion that affirmed a trial court’s order denying objections filed by natural gas drilling company, Range Resources-Appalachia, LLC, to a subpoena issued to one of its engineering consultants, URS Corp. The case, Haney v. Range Resources-Appalachia, LLC, et al., No. 2012-3534, involves personal injury and property damage claims filed by a group of residents that live near Range’s Yeager natural gas drilling site in Washington County, Pennsylvania. Read More »

In general, when a party shares communications or information protected by the attorney-client or work product privilege with a third party, the privilege is waived. However, in many jurisdictions, if this sharing occurs when there is anticipated or actual litigation, a “common interest” exception allows parties to disclose privileged information amongst themselves while still preserving the privilege against disclosure to their adversaries. On Monday, the New Jersey Supreme Court in O’Boyle v. Boro. of Longport, No. A-16-12, 2014 WL 355874 (N.J., July 21, 2014), expressly adopted this “common interest” rule (also often referred to as the “joint defense privilege”) so that parties to litigation in New Jersey can share privileged communications and information without the risk of destroying the underlying privilege. Read More »

I love dissents. While majority opinions focus on legal analysis, as they should, dissents tell the story, because it is usually only in the context of the story that the legal analysis of the majority can be directly attacked. Such is the case with the recent en banc decision by the Pennsylvania Superior Court in Barrick v. Holy Spirit Hospital, 2011 Pa. Super. 251 (2011). But more on the dissent later. Read More »